Avoiding a copyright “SCARE”

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What you can and can’t use for social media and curated content

It’s Halloween, and here at Evolution we’ve been discussing our favorite horror movies, reminiscing about favorite costumes and binging on candy we should be saving for trick-or-treaters.

Fixating on all things scary got us thinking about a particularly terrifying risk for any creative business: ghoulish lawyers appearing out of the mist to drain your bottom line with a spooky copyright lawsuit(Terrifying, right?)

To ward off nightmares of undead attorneys or haunted halls of justice, we’re going to share some information and a few tips gleaned from a recent copyright law session with Mary Jo Courchesne, owner and principal rights consultant at Gryphon Publishing Consulting LLC.

Know your (copy) rights

One thing that may surprise you is that anything a writer, designer or artist creates is copyrighted the second it is placed in a “fixed medium,” such as a Word document, video, or recording. A work can be registered with the government to make prosecuting infringement easier but, generally speaking, once someone has published, saved, uploaded, tweeted or posted a piece of content, it’s theirs and it’s protected.

This safeguards you if someone uses you work without permission, but it also means you can’t use someone else’s artwork /content without asking just because you saw it shared on social media. (Side note, retweeting is generally safe, but it’s always best to link to the original article/publisher and give credit to the creator.)

What isn’t protected and why

Remember how restaurant servers never used to sing “Happy Birthday” when they brought out a cake to mortified customers? That’s all over now that a judge declared the song (after 80 years of it being a staple of American culture, but still off limits to TV shows, movies or T.G.I.Friday’s staff) to be in the public domain. We won’t get into all the details about public domain, intellectual property and fair use here, but one way of looking at it is “things that belong to everyone can’t be owned by anyone.” Some of these “un-ownable” items include:

  • Facts
  • Ideas that are considered common knowledge
  • Commonly used phrases

One factor to determine if books, songs, etc. are in the public domain is to look at when the author died (not sure if it applies to authors who are “undead,” our lawyer won’t return our emails…) Any work is declared safe to use once the original creator has been dead for 70 years.

Getting it right

There’s a lot of ground not covered in this post, but we didn’t want to bore you to death...

We’d like to end with two best practices to keep in mind when posting, curating or distributing content for your business or a client’s:

  1. Use what you own

This seems simple enough, but it can be a challenge on a budget or with a limited staff. Just be sure that vendors or subcontractors you use for artwork or content transfer ownership/copyrights of all collateral to you or your client.

Another technique is to use images or music from royalty-free sites like Pixabay and PremiumBeat. Some of the music and images are free and some are for sale. Either option is cheaper than going to court.

  1. When in doubt, ask a copyright attorney

Again, this may take some investigating to find an attorney to do a risk analysis without breaking your budget, but it’s still cheaper than the alternative if you cross the copyright line. They may recommend you simply contact the artist or owner to ask for permission, or they may advise you to steer clear of a certain grey area altogether.

If you don’t have the time or budget for this, you can check www.copyright.gov to see if something is protected, but remember a work may be copyrighted by the owner even if it isn’t registered with the government.

Either way, expert advice may mean the difference between releasing a brand, publication or video that puts you on the map, and a gory lawsuit, so play it safe.

Just please don’t mention that you got the idea from a blog about zombie lawyers.

Happy Halloween!